Eighth Circuit Concludes Abstention Inappropriate in Hague Convention Cases.

In Barzilay v Barzilay, 536 F.3d 844 (8th Cir. 2008) Sagi and Tamar Barzilay were both Israeli citizens. They had three children, all of whom were Israeli citizens. None of the children lived in Israel for an extended period of time. In 2001 the family moved to Missouri from the Netherlands, and Tamar and the children lived there since that time. On January 6, 2005 a Missouri state court entered a divorce decree in accordance with an agreement reached by the parties. It established joint custody of the children. In the decree the parties agreed that upon the repatriation of one parent to Israel, the other parent would "forthwith" return to Israel with the minor children to live. On September 15, 2005 Sagi repatriated to Israel, but Tamar and the children remained in Missouri. In June 2006 Tamar took the children to Israel for a visit, intending to return to the United States on July 9, 2006. On July 3, 2006 Sagi filed an ex parte request for stay of exit of minors in the family court of K'far Saba, Israel and argued that Tamar had violated the Missouri court decree by failing to repatriate to Israel with the children. The parties entered into a consent agreement in which Tamar agreed to an interim international parenting agreement pending her repatriation to Israel consistent with the Missouri divorce decree and to repatriate to Israel with the children by August 1, 2009. The parties agreed, among other things, that Tamar's repatriation by the appointed date was an "irrevocable commitment" and that the "sole and only international authority in regards to the minors' immigration, repatriation and custody" was the court in K'far Saba. The consent agreement was formalized in a verdict of the Israeli court. Tamar testified in an affidavit submitted to the federal district court that she only signed the Israeli consent agreement so that she would be permitted to leave the country with the children and that she had no intention of complying with its terms. On December 3, 2006, Sagi sued Tamar in the Israeli court, on the grounds that she had not complied with the consent decree by refusing to permit the children to visit Israel as agreed upon in the consent agreement. On July 3, 2007, the Israeli court issued a judgment holding Tamar in contempt of court for failing to return the children to Israel for a visit as required under the agreement and ordered her to do so by July 10, 2007. She appealed, but the lower court was affirmed on November 26, 2007. Meanwhile on June 6, 2007, Tamar filed a petition in Missouri state court to modify the couple's divorce decree to restrict Sagi's visitation rights with the children and a month later she moved for a temporary restraining order to prevent the enforcement of the Israeli judgment requiring her to send the children to Israel by July 10. Sagi entered an appearance for limited purpose in state court to challenge its jurisdiction, but at no time did he file a Hague petition there. On October 16, 2007, the state court issued an order denying Sagi's motion to dismiss or in the alternative to decline jurisdiction. In its two page order the court stated that "[t]he mere presence of the minor children on vacation in Israel is insufficient to establish a 'habitual presence' [under ICARA]." Sagi filed suit in the Eastern District of Missouri on October 18, 2007, seeking immediate access to the children and their return to Israel under ICARA.3(b). The district court abstained from hearing the case pursuant to Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971 to avoid interfering with a state court ruling on what it considered the merits of a Hague Convention claim.
The Eighth Circuit reversed. It pointed out that Federal courts have a "virtually unflagging obligation ... to exercise the jurisdiction given them." Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). However, the Supreme Court has articulated several abstention doctrines as exceptions to this rule, one of which is the Younger doctrine. In order for a federal court to abstain under the Younger doctrine there must be an ongoing state proceeding which implicates important state interests and which affords an adequate opportunity to raise the federal issues. Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982); Silverman I, 267 F.3d at 792. It noted that the Hague Convention requires that state court custody proceedings be stayed until the resolution of the Hague litigation. ("[T]he judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention.") Yang v. Tsui, 416 F.3d 199, 201 (3d Cir.2005). It is consistent with this purpose that it is the custody determination, not the Hague Convention Petition, that should be held in abeyance if proceedings are going forward in both state and federal courts." The pendency of state custody proceedings does not support Younger abstention in the Hague Convention context. Moreover, given that Sagi obtained a custody determination from an Israeli court and Tamar obtained a custody determination from a state court in this country, the federal district court was uniquely situated to adjudicate the question of whether Israel or Missouri was the habitual residence of the Barzilay children and whether they were wrongfully removed from that residence. Although the state clearly has an important interest in child custody matters, that interest has not been considered to be a significant factor in terms of abstention where ICARA is involved. See Yang, 416 F.3d at 204 ("It would make the Hague Convention and ICARA meaningless if a federal court abstained in a Hague Convention Petition because child custody was being disputed in state court."). The Court found that the state court proceedings did not afford Sagi an adequate opportunity to raise the Hague Convention issues. The controlling case in the Eighth Circuit was Silverman I, which concluded that abstention was inappropriate in Hague Convention cases. 267 F.3d at 792. The district court sought to distinguish Silverman I, citing the Third Circuit's decision in Yang which recognized situations in which the Hague Convention issues could be litigated in state court. The Eighth Circuit noted that it is the "petitioner [who] is free to choose between state or federal court." Yang, 416 F.3d at 203. Neither Tamar nor Sagi filed a Hague petition in state court. Tamar merely referenced the Hague Convention twice, in her motion to modify the divorce decree, and in her motion for a temporary restraining order. At no time did Tamar file a Hague petition in the Missouri court. She did not request the state court to make a habitual residence determination under the Hague Convention. She did not allege or ask the state court to rule that Sagi had wrongfully removed the children to Israel or wrongfully retained them there. Sagi's special appearance in Missouri was for the "limited purpose of opposing [the state court's] jurisdiction." Sagi restricted his state court arguments to jurisdictional issues. He never raised the Hague Convention before the state court except to contest its exercise of jurisdiction. Sagi never engaged in an argument in the state court on the merits of the Hague Convention considerations--habitual residence and wrongful removal. Rather, he informed the state court that he intended to file a Hague petition in federal district court to litigate the merits of the Hague issues in that forum. Because neither parent filed a Hague petition in state court, the Eighth Circuit concluded that the Hague Convention issues were not properly or fully raised in that proceeding. The parties did not litigate the merits of such issues, and any statement by the state court touching on an issue under the Hague Convention inquiry is not controlling. It is "the petitioner [who] is free to choose between state or federal court," Yang, 416 F.3d at 203, and in the absence of a Hague petition the state court proceeding did not present an adequate opportunity to litigate ICARA issues. It was therefore an abuse of discretion for the district court to abstain.

Good Faith Allegation of Abuse Cannot Be Held Against Accuser in Custody Proceedings

Domestic Relations Law § 240, subdivision 1 (a) was amended to provide that a good faith allegation of abuse cannot be held against the accuser in child custody proceedings. The amendment to the statute is intended to ensure that the accuser engaging in a good faith effort to protect or seek treatment for the child due to the child abuse or neglect cannot have these actions used against them when determining custody or visitation. If a parent makes a good faith allegation based on a reasonable belief which is supported by facts that the child is the victim of child abuse, child neglect, or the effects of domestic violence, and if that parent acts lawfully and in good faith in response to that reasonable belief to protect the child or seek treatment for the child, then that parent may not be deprived of custody, visitation or contact with the child, or restricted in custody, visitation or contact, based solely on that belief or the reasonable actions taken based on that belief. If an allegation that a child is abused is supported by a preponderance of the evidence, then the court must consider such evidence of abuse in determining the visitation arrangement that is in the best interest of the child, and the court may not place a child in the custody of a parent who presents a substantial risk of harm to that child. Laws of 2008, Ch 538, effective September 4, 2008.

Today's Lesson - Outsourcing your future jobs to India

Saw an interesting video on Youtube. Apparently, this Paul Garrity character from Kelley Drye & Warren was boasting to a group of students at Cardozo Law School how he has been busy making money by outsourcing their future jobs to India. With Cardozo tuition now exceeding 40 grand a year, these kids should be crapping in their pants.


http://www.youtube.com/watch?v=RA7rasp7ifk&feature=related

Carol Fritz

The jobs are awful, the student loans are crushing, the basements are dank, the temp agencies are bloodsucking vampires, and the American economy is crumbling, but at least you can count on your fellow coder mules to back you up. NOT!

http://www.cfritzlaw.com/

It puzzles me why this woman would try to facilitate the outsourcing of her own job to India:

"Now, in addition to outsourcing discovery work to me, firms have access to a whole team of Indian attorneys who are highly trained in U.S. law for legal research and litigation support. It fits with my commitment to making law more efficient and more economical."

My favorite part of her blog, however, comes from her testimonial section:

"Her fee was reasonable, and we paid no overhead or benefits. I would definitely hire her again."

Wonderful. The pride and fighting spirit of the American worker is alive and well.

Joan King and Update Legal

HAHAHAHA!!! Is Joan King and her little workers finally owning up to the obvious??

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"On Wednesday September 24th at 12:30 pm, Update Legal representatives will present information about the temporary market at the Law School, Subotnick Center (11th Floor). Update Legal will raffle two Ipod shuffles. We will serve lunch so please R.S.V.P. to Valerie.henderson@brooklaw.edu by September 17th if you plan on attending. This has been a very useful program in past years.

Camille Chin-Kee-Fatt
Deputy Director of Career Services
Brooklyn Law School"

De Novo Legal's "Jolly John"

"This is a story about working for De Novo Legal at its midtown Manhattan and about its Site Manager, John Thacher ("Jolly John").

In his introductory remarks to us in connection with my current project, Jolly John told us a lot of things I just do not believe to be true.

One was that he likes to see De Novo mentioned in this Blog.

Oh, really?

I wonder whether he will still feel that way when he reads (1) what I have to say about De Novo in general, and (2) about how he manages his business in particular.

I am one of 60 contract attorneys who are -- theoretically -- "working for" De Novo Legal at its midtown Manhattan location.

As I will explain in a moment, we did not work yesterday (Tuesday, September 2, 2008), and we are not working today (Wednesday, September 3, 2008).

The law firm is Weil Gotshal & Manges.

The client is a manufacturer of high-end data storage equipment for computer systems.

Each of us was required to make a commitment to work "14 straight days" (that is, 14 consecutive days).

This included all three days of the Labor Day weekend (how aptly named!).

We were promised $35 per hour and time-and-a-half for overtime (wait until you see how tis is computed!).

We were told that we would be expected to make "10-12" billable hours per day and "60" billable hours per week.

We were told that the "document coding room" would be open 8:00 a.m. to 10:00 p.m. Monday through Friday, and 8:00 a.m. to 6:00 p.m. Saturdays, Sundays, and Labor Day.

When we were recruited were told that the project would begin "on Friday, August 22, 2008, or on Monday, August 25, 2008."

The project began on Friday, August 22, 2008, and that was -- obviously -- no accident.

"Overtime" is defined as all hours during the weekly pay period after 40 hours (in other words, from Hour 41 to the last hour billed during the weekly pay period).

Like most, if not all, of these agencies, De Novo's weekly pay period runs from Monday through the following Sunday.

By requiring all "contract attorneys" (read that as "serfs") to begin working on a Friday (and to work on Saturday and Sunday), and by maintaining that the weekly pay period begins on the following Monday, De Novo availed itself of three full days of work from each of the 60 contract attorneys that did not figure into the computation of their entitlement to time-and-a-half for overtime.

I will not reveal the number of hours I worked because that would make it possible for De Novo to identify me. Let it suffice for this purpose for me to say:

1. I am not stupid, I just lack bargaining power (more on this below).

2. I worked a full day on Friday, August 22, 2008; a full day on Saturday, August 23, 2008; and a full day on Sunday, August 24, 2008. None of those hours "counted" toward reaching Hour 41 during my first seven days on this project.

3. Yeah, yeah. As I said above, I understand that De Novo's weekly pay period begins on Monday. That has absolutely nothing whatsoever to do with computing the first 40 hours and computing everything that follows. This is nothing other than bait-and-switch. I have the e-mail stating the terms of the employment to demonstrate that this amounts to a breach of contract, pure and simple. But it gets worse.

Evidently, De Novo and its sister agencies think every aspect of the employment relationship is a one-way street: All the advantages flow from the employee to the employer (and the employer's principals, the law firm and the "client" the law firm represents); all the disadvantages flow toward the employee (that is, you and me).

For example, when I worked for Sullivan & Cromwell LLP ("S&C") (through a different agency), I was required to sign a document that (1) required me to commit myself to continue the project to its completion, and (2) characterized the employment as "at will" so that the employment could be terminated by the employer (the agency at the behest of S&C) at any time, for any reason, or for no reason at all. Are we all insane? The answer is, "Yes, we are because we tolerate these abuses (more below).

On Wednesday, August 27, 2008, the "system" was running very slowly. At 5:15 p.m., Jolly John told us that "we" would be closing for the day at 5:30 p.m. That meant a loss of 4.5 hours for each of 60 contract attorneys. Here is the math: $35.00 x 4.5 hours = $157.50 per contract attorney x 60 contract attorneys = $9,450 in aggregate lost wages.

Actually, I understated the loss to the contract attorneys. Since each one has made a commitment to work at least 60 billable hours per week, each one is expected to work at least 20 billable hours at the overtime rate of $52.50 per hour. Every lost hour "come off the top, so here is the real math: $52.50 x 4.5 hours = 236.25 per contract attorney x 60 contract attorneys = $14,175 in aggregate lost wages.

Wait, it gets worse.

Someone must have suggested to Jolly John that it would be reasonable to pay us time-and-a-half for all hours worked on Labor Day, a national holiday (it was not I who did that).

He then announced to all contract attorneys that if anyone is not satisfied being paid straight time to work on Labor Day, he or she should just take the day off. So much for the client's supposedly urgent need to have its work completed. I use the word "supposedly" here because why else would they have asked 60 contract attorneys to make a commitment to work 14 straight days, including Labor Day?

On Labor Day at 5:00 p.m., although many of us had just signed out new batches of documents, Jolly John revealed to us that "we" were running low on documents. He regaled us with a tale of his efforts to get some (unnamed) third party in some (undisclosed) location to load more documents. he went on to tell us how he said to someone, in substance, "How would you like it if I sent you home for two days without work and without pay?" What good does that do me? My creditors do not care why I do not have enough money to pay them.

Jolly John told us we could continue to work past 6:00 p.m. and go until 8:00 p.m., if so inclined.

Tuesday was an idle day. After all, all 60 of us made "commitments" to be available to work for De Novo and its principal, WGM, and WGM's client. Nor could any of us scrounge up work for a single day (let alone work on the functional equivalent of zero advance notice). Let's do the math again:

$35.00 per hour x 10 hours (minimum commitment of a contract attorney on this project) = $350.00 per hour x 60 contract attorneys = $21,000."

Outsourcing A-Okay, Says ABA

"Though lawyers, they are as vociferous in their opposition to outsourcing as union members. After Perla compared the skills of U.S. contract lawyers unfavorably with those of Pangea3 lawyers in an interview with the Law Journal earlier this year, he was vilified in online message boards and blogs frequented by contract lawyers. The blog "Temporary Attorney: the Sweatshop Edition" called Perla an "anti-American traitor."

Scott Bullock, a contract lawyer who has blogged about the woeful economics of non-big-firm practice, said, "It's just preposterous that we have to go to an American law school and pass a bar exam and then see our jobs shipped overseas. Why even require people to go to law school?"

But Bullock said he was not surprised to see the ABA back outsourcing. He said the bar group is widely perceived among contract lawyers as representing the interests of wealthy partners at large law firms."

http://www.law.com/jsp/article.jsp?id=1202424085117